Brown v Bluett - [2013] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BROWN -v- BLUETT [2013] WASC 189

CORAM: ALLANSON J

HEARD: 14 MAY 2013

DELIVERED : 14 MAY 2013

FILE NO/S: SJA 1014 of 2013

BETWEEN: BEN RALPH BROWN
Appellant
AND
DANIEL JOHN BLUETT
First Respondent
TRYSTAN PHILIP EDWARD GAUSDEN
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L J ATKINS
File No  :WU 324 of 2012, WU 325 of 2012, WU 347 of 2012, WU 348 of 2012

Catchwords:

Criminal law - Sentencing - Aggravated assault and repeated breach of restraining order - Operation of Sentencing Act 1995 (WA) s 9AA - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 9AA

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant:     Mr D D Brunello
First Respondent          :     Mr L M Fox
Second Respondent      :     Mr L M Fox

Solicitors:

Appellant:     Aboriginal Legal Service (WA)
First Respondent          :     Director of Public Prosecutions (WA)
Second Respondent      :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Baudoeuf v Venning [2010] WASC 322
Cullen v Rowlings [2009] WASC 80
Forkin v State of Western Australia [2013] WASCA 51
Looty v Jacques [2010] WASC 78
Messiha v Plaucs [2012] WASC 63

ALLANSON J: On 8 January 2013 the appellant, Ben Ralph Brown, was sentenced for four breaches of the criminal law:
1.on 30 August 2012 he unlawfully assaulted Vera Lynne Anderson and thereby did her bodily harm in circumstances of aggravation;
2.on 30 August 2012 he breached a violence restraining order;
3.between 8 September and 11 September 2012 he again breached that violence restraining order; and
4.between 12 September and 19 September 2012 he again breached the violence restraining order.
Mr Brown pleaded guilty to all of these offences.
The facts in short are these:
On 9 May 2012, a violence restraining order was issued with conditions which included prohibiting Mr Brown from communicating or attempting to communicate with Ms Anderson, from remaining on premises where she lived or worked and from remaining within 10 m of her.
The first breach of the restraining order was committed when Mr Brown attended a Native Title meeting on 30 August 2012, where he knew Ms Anderson would also be and, while there, he talked to her and stayed awhile in her presence. On 30 August 2012, Mr Brown assaulted Ms Anderson by hitting her on the back of the head with a jaffle iron. The blow caused a cut that had to be medically glued and Ms Anderson also suffered bruising and abrasions to her back and shoulder.
Between 8 and 11 September 2012, Mr Brown went to Ms Anderson's house and persuaded her to take him to Meekatharra in her car where she spent three nights with him. While there he tried to persuade her to withdraw the charges against him to the effect that she went to the Wiluna police station to do just that. That was on 11 September.
Finally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Bluett

Details

AGLC: Brown v Bluett [2013] WASC 189
Case: [2013] WASC 189
Decision Date: 14 MAY 2013

CaseChat Overview and Summary

In the matter of Brown v Bluett, the defendant, Bluett, was convicted for aggravated assault and multiple breaches of a restraining order. The case was heard in the Supreme Court of Western Australia. The primary issue before the court was the appropriate sentence for Bluett, given the nature and circumstances of the offences, including the aggravated assault and repeated breaches of the restraining order. The court was required to determine how to balance the principles of punishment, deterrence, and rehabilitation in sentencing.

The legal issues focused on the operation of the Sentencing Act 1995 (WA) section 9AA. This section requires the court to consider specific factors when determining the sentence, such as the offender's culpability, the circumstances of the offence, and the impact on the victim. Additionally, the court had to weigh the aggravating factor of the repeated breaches of the restraining order. The court analysed the principles of sentencing as outlined in the Act and the relevant case law to arrive at a decision that was just and proportionate to the severity of the offences.

The Supreme Court determined that the offences committed by Bluett warranted a significant custodial sentence. The court found that the aggravating factors, particularly the repeated breaches of the restraining order, indicated a high degree of culpability and a serious disregard for the law and the safety of the victim. The court held that a lengthy sentence was necessary to ensure adequate punishment and deterrence. The final sentence imposed was a combination of imprisonment and community service, reflecting the court's consideration of both punitive and rehabilitative objectives.

Orders